Leiden Law Blog

A political party exercising its right under national law to recall an elected official from office

Following elections for membership of the town council of Helao Nafidi in Namibia, Ms E.Nd. Nghidimbwa was sworn in as a member of the council on 4 December 2015. Ms Nghidimbwa represented the Swapo Party of Namibia that had won six of the seven seats on the council. On 8 August 2016, Ms Nghidimbwa was informed by the Secretary General of the Swapo Party that the Party had decided to withdraw her from the town council and replace her with another candidate from the Swapo Party’s election list. The reason for this decision remains not entirely clear, but seems to be that there had been make a mistake by the local Swapo Party’s leadership in drawing up the order of the names of the candidates on the election list. Ms Nghidimbwa contested the validity of the decision by the Swapo Party to withdraw her from the town council. She argued inter alia that the Swapo Party had failed to give her an opportunity to be heard before the decision was made. On its part, the Swapo Party relied on the Local Authorities Act of Namibia that provides ‘that a member of the local authority council shall vacate his or her office if he or she is withdrawn by the political party which nominated him or her for election’ (formulation by the High Court), and that there was no legal obligation on the Swapo Party to give Ms Nghidimbwa a hearing.

On 16 October 2017, the High Court of Namibia (H. Angula, Deputy-Judge President) ruled that the decision by the Swapo Party of Namibia ‘to withdraw the applicant as a councillor on the Council for the town of Helao Nafidi is set aside’. The High Court considered that the Swapo Party ‘was obliged to act lawfully, procedurally and fairly’. According to the High Court, the obligation to act fairly is enshrined in two legal principles: ‘audi alteram partem (“hear the other side”); and nemo iudex in propria causa (“no one may judge his own cause”)’. In the case before the High Court, the first of these principles had been violated. The High Court stated that, although the Local Authorities Act does not prescribe that a political party shall give a member of a town council the opportunity to be heard at a moment before the party withdraws that member, ‘Generally there are two fundamental requirements to which an affected individual is entitled: notice of the intended action; and a proper opportunity to be heard’. The High Court concluded:

‘Taking everything into account, I am satisfied that the applicant has made out a case that [the Swapo Party of Namibia] misconstrued the ambit of its powers and that the decision to withdraw the applicant was made without a fair procedure being followed. I have therefore arrived at the conclusion that the applicant’s contractual right was violated when she was withdrawn as a councillor without being afforded a right to be heard before the decision to withdraw her was made’.

In itself, this paragraph it also interesting because it states that the relationship between a political party and a member is contractual, rather than being a relationship of a separate and unique nature deriving from the law on legal personality as such.

The judgment of the High Court of Namibia, Main Division, Windhoek, can be found at: www.namiblii.org, judgments, High Court main division, 2017, October 2017, Nghidimbwa v SWAPO Party of Namibia and 5 Others.

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